ANCOR Comments on U.S. DOL Companionship Proposed Rule Changes

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ANCOR Comments on U.S. DOL Companionship Proposed Rule Changes

February 22, 2012

ANCOR is a national association that represents providers of community supports to people with disabilities. A number of our member agencies provide supports through the U.S. Department of Labor’s exemption for Companionship Services (29 CFR Part 552) in those states with labor laws that permit their use. A few states not only encourage their use but have established programs around companionship services.

While we would prefer that the regulations not be changed to the degree proposed, we know that the courts have provided clarification that should be incorporated into the rules. We further believe that as written, they continue to permit the involvement of third party agencies.

§ 552.6 (a) defining “companionship services” to mean the provision of “fellowship” and “protection.” ANCOR agrees that the focus of companionship should be the provision of fellowship and protection. We also believe that most “driving,” which currently appears in (b)(4), should be included as part of fellowship and protection, as should “reminders” about medical appointments and scheduled medications referenced in (d).

§ 552.6 (b) defining “intimate personal care services that are incidental to the provision of fellowship and protection.” This new section clearly defines the supports which will be included in the 20 percent limitation on services not considered to be included in “companionship.” This has long been unclear to individuals and agencies that use the exemption, as well as the courts which have tried to define it. While the proposed language narrows the types of supports that can be included in the exemption beyond that which ANCOR prefers, its meaning is clear.

Since the provision of the listed supports is strictly limited by the 20 percent limitation, we do not believe the word “occasional” is necessary preceding each of the listed supports. Assistance with dressing and grooming, for example, is often provided by family members of people with disabilities and we believe these are commonly provided with companionship services. When a person with disabilities lives in the family home, the family member who provides the majority of support may leave for, or return from, work before or after the companion is present. As long as no more than 20 percent of the total time spent is on this type of support, we believe it should be permitted on a daily basis. Without this type of support, it is possible that some families would no longer be able to maintain their family member in the family home. This could ultimately come at great additional cost to federal and state funding sources.

ANCOR further believes that driving to social events should not be included among the “intimate personal care services” in the 20 percent limitation. While driving to appointments and errands might be considered within the realm of intimate services, driving to social events, including movies, restaurants, visiting or sightseeing should not be included in the limitation. Many people with disabilities enjoy drives and times away from home and we do not believe this should be limited. These are an integral part of fellowship and protection and should be listed instead in §552.6(a).

§ 552.6 (d) defining medical supports that cannot be provided by a “companion.” While the listed services are often performed by family members, and we believe that they could be included in the 20 percent limitation, we are pleased that reminders about medical appointments and predetermined medication schedules are not prohibited. We do not believe these reminders should be included among the 20 percent limitations. They are not “intimate personal care services” and should instead be listed in § 552.6(a).

ANCOR’s statement regarding “driving” is included above. Further, we would like to see assistance with medication administration moved to the section that describes supports to be included in the 20 percent test in (b).

§ 552.102 Live-in domestic service employees. Language contained on page 81198 of the “Supplementary Information” section of the Proposed Rules implies that records would have to be maintained by companions who reside on the premises under § 785.23. We are not certain that the proposed language does this.

§ 552.109 Third Party Employment. As stated earlier, a number of ANCOR members have availed themselves of the third party exemption for companions and we regret the Department’s current decision to exclude the exemption for third-party employers. However, we are pleased to see language at the end of paragraphs (a) and (c) that the individual or a household member may have a third-party, joint relationship with a third party employer.

We believe that the role of a third-party employer in companionship can include: training individuals who wish to work as exempt companions in private households, background checks (which may not be obtained by private individuals in some states), the provision of lists of approved trained companions for individuals and families to interview and hire, quality assurance and the like. This would enable individuals with disabilities or who are aging and need fellowship and protection to hire people who are sensitive to their needs and have passed background checks. Many families and individuals do not wish to perform the functions provided by paycheck companies and these services should be permitted by third-party employers as well, as should quality assurance provisions required by State governments. These functions, of course, would be compensated using minimum wage and overtime rules. Individuals and families would be responsible for firing companions, as well as hiring them and instructing them as to the duties to be performed as companions.

§ 552.110 (b), (c), (d) and (e) Recordkeeping requirements. While a major advantage of the companionship exemption is the absence of recordkeeping requirements, with the expanded definition of supports that are restricted to the 20 percent test, we believe that the companion should record time spent in those types of supports as well.